A Uniform Hermeneutic Thesis: Objectivity and the High Court of Australia’s Approach to Interpretation Across the Private Law

At a broad level of generality, the orthodox approach to interpreting contracts, trusts, wills, security documents, company constitutions (etc.) is the same: a search for the objective meaning to be attributed to the author(s) of the instrument. This uniform hermeneutic thesis was most clearly set out in the High Court of Australia’s decision in Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253. In light of this thesis, there are two main reasons for this article. The first is to respond to a common criticism of this uniform objective approach. The criticism is that as each species of legal obligation is different, it follows that different rules of interpretation should apply when the given legal context changes (e.g. why not ask the settlor of an inter vivos trust what she meant to say when an interpretational dispute arises). The second reason is to demonstrate that the explanations most commonly given in defence of an objective approach to interpretation, namely to promote legal certainty and economic efficiency, fail to capture the essential reason why the objective approach permeates the general law. The thesis put forward in this article is that an objective theory of interpretation is a justifiable aspect of private law because language (being a form of communication) does not operate unilaterally but requires stable and dependable shared conventions. This argument is supported by the further claim that where the author of a legal instrument utilises these publicly recognised conventions in order to affect her legal relations with others, she ought to be bound by those conventions. One cannot have the benefit of ‘conventions for me but not for thee.’